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June 30, 2012

The question in the title of this post is prompted by this AP report, headlined "Lauryn Hill Tax Charges: Singer Pleads Guilty In NJ, Faces Jail Time." Here are excerpts:

Eight-time Grammy-winning singer Lauryn Hill pleaded guilty Friday to not paying federal taxes on more than $1.5 million earned over three years. Appearing in U.S. District Court in Newark, Hill admitted failing to file tax returns from 2005 to 2007. She faces a maximum one-year sentence on each of the three counts. She was charged three weeks ago.

Dressed in a dark jacket, white button-up shirt and a long reddish-orange skirt, Hill declined to comment after Friday's hearing. During the hearing, attorney Nathan Hochman indicated that Hill planned to pay back the taxes she owes. U.S. Magistrate Michael Shipp initially scheduled sentencing for early October but agreed to delay it until late November to give Hill time to make repayment....

After the charges were brought, Hill posted a long statement on her Tumblr page that decried pop culture's "climate of hostility, false entitlement, manipulation, racial prejudice, sexism and ageism." She explained that she hasn't paid taxes since she withdrew from society to guarantee the safety and well-being of herself and her family.

Hill hinted Friday that she might expand on those comments at her sentencing. When Shipp asked her if anyone had directly or indirectly influenced her decision to plead guilty, she replied, "Indirectly, I've been advised my ability to speak out directly is for another time, at sentencing."

I look very much forward to seeing how Hill and her lawyers might be able to incorporate the faults of pop culture and its "climate of hostility, false entitlement, manipulation, racial prejudice, sexism and ageism" into an argument via 3553(a) that a low sentence would be sufficient to avoid the miseducation of Lauryn Hill.

Did (white-collar?) arsonist poison himself in courtroom right after hearing verdict and sentence?

The main question in thie title of this post present the interesting mystery in reported in this Huffington Post piece, which is headlined "Michael Marin, Ex-Wall Street Trader, Dies In Courtroom After Conviction." Here are the details:

An ex-Wall Street trader collapsed and died in a Phoenix-area courtroom Thursday, shortly after being found guilty of setting his mansion on fire in a ploy to escape his mortgage debt.

Police are now investigating whether the man, Michael Marin, purposefully killed himself. Shortly after the jury read its verdict and sentenced him to 16 years in prison, Marin appeared to place something in his mouth several times and drink from a bottle he brought with him into the courtroom. Minutes later, he suffered from a seizure and died. Police can't yet confirm whether Marin’s death was a suicide.

Marin’s mansion in a ritzy Phoenix neighborhood caught fire in 2009, the Arizona Republic reports. Marin claimed he had to escape from the house wearing a scuba tank and mask to protect himself from the smoke, but investigators found evidence that he set the fire himself. Though he had grown accustomed to a lifestyle that reportedly included owning Picasso sketches and $800 climbing boots, Marin’s financial situation grew dire the year before the fire. His bank account balance fell to only $50 from $900,000 even while he had a monthly mortgage payment of more than $17,000, according to the Arizona Republic.

In addition to the interesting possibility that the defendant here decided to sentence himself to death rather than go to state prison, I have also flagged this story because I wonder just how we ought to characterized Marin's crime of arson. Is this crime properly called vioent or non-violent? Is it a white-collar offense? A property offense or a fraud offense? One of the many challenges of studying crime and sentencing data is trying to fully understand what gets placed into which data catergories, and this kind of case reinforces my persistent concern than many crimes defy easy categorization.

Criticism of Justice Alito's one-size-fits-all dissent in Miller

As regular readers know and as previously explained here, in a series of posts I am taking on a claim at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basics here). In the first post here, I questioned number-crunching in the Roberts/textualism dissent. In this second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent.

Coming soon will be my final post in ths series in which I examine a key claim in Justice Alito's dissent. But, before I that post is finished, I see that Wendy Kaminar has this potent criticism in The Atlantic of Justice Alito's work in Miller which carries this sub-headlined: "Conservatives are supposed to embrace individualism. So why did the Court's conservative wing defend a one-size-fits-all approach to juvenile justice?" Here are snippets from the piece:

Individualized justice is supposed to be a conservative ideal. Liberals are supposed to embrace collectivism, while conservatives promote individualism and oppose regulatory schemes, like affirmative action, which treat people categorically as fungible members of groups. A collective or categorical approach to law is, from this perspective, an assault on liberty and the integrity of the individual -- except when it's not....

Justice Alito objected strongly to this individualized approach to sentencing. The "category of murderers" under 18 consists mostly of older teenagers who engage in "brutal thrill-killing," Alito declared in dissent. The offenders in the cases before the Court in Miller were "very young"; they were "anamolies," for whom it was "hard not to feel sympathy," he acknowledged. But if some members of the juvenile murderer category are atypical and inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view, 8th Amendment strictures against cruel and unusual punishment do not bar states from imposing excessively harsh sentences on a few juveniles who may not deserve them in order to facilitate their imposition on many teenagers who do.

"No one should be confused by the particulars of the two cases before us," Alito admonished, in a remarkable rejection of individualized justice when it arguably matters most, in the imposition of criminal sentences. Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative Supreme Court bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be). I suspect he'll want to be treated as Samuel Alito, a particular person alleged to have committed a particular crime. Should he ever be arrested, Justice Alito will probably want police, prosecutors, jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as "confusing."

Particularized, individualized justice is precisely what mandatory sentences deny. The Court has declined to strike them down under the 8th Amendment in cases involving adults, although they often dictate excessively, disproportionately harsh sentences, and their role in filling our prisons with non-violent drug offenders is a decades old scandal. Long promoted as a means of eliminated discretion in sentencing, mandatory minimums merely transfer discretion from judges to prosecutors. They ensure that prosecutors decide how defendants will be sentenced when they choose the crimes with which defendants will be charged. In juvenile cases, prosecutors may sometimes choose lengthy, mandatory sentences when they choose to transfer juveniles to adult court.

Now, under Miller, prosecutors may still transfer juvenile homicide suspects, who may still face LWOP for "brutal thrill-killings." But their sentences will no longer be determined by generally unaccountable prosecutors or by the crimes of other juveniles in their "category." This is not an obscure principle, difficult to comprehend. Juvenile offenders are individuals too, not interchangeable members of a class.

June 29, 2012

"Jerry Sandusky Could Get Pension in Prison Unless Bill Passes"

Former Penn State football coach Jerry Sandusky will likely receive his $58,898-a-year state pension while in prison, unless a bill stalled in Pennsylvania's senate finance committee is quickly passed by the legislature and signed by the governor.

The bill would prevent employees convicted of sexual offenses related to their jobs from receiving their state pensions, said Cameron Kline, a spokesperson for State Sen. Larry Farnese, D-Philadelphia, who introduced the bill before Sandusky was charged with sexually abusing boys in his Second Mile program.

"This was introduced on Oct. 18, 2011, well before Sandusky's crimes came to light," Kline said. "It's something we think would be very appropriate for a case such as this. Now that it's over, we're a little concerned, confused and angry it's still stuck there. Apparently it's not a priority so the legislation still stays in committee."

Under current law, the pensions of public employees can be seized when a member is convicted of an Act 140 crime. That act includes crimes such as extortion, perjury and bribery but does not include sexual abuse, according to the Pennsylvania State Employees Retirement System website.

Pam Phile, spokesperson for the Pennsylvania State Employees Retirement System, said she could not speculate on whether Sandusky will have to forfeit his pension under the existing law, which was passed in 1978. "SERS reviews the sentencing documents in reaching a forfeiture determination and there has been no sentencing yet in this particular case," Phile said.

Kline said there are potentially other ways Sandusky could be stripped of his pension, but said passing a law at the state level would probably be the most logical. "There could be things at the Penn State level," he said. "[But] I really think it has to be a state law issue. This is the only thing that is at the ready to move. To my knowledge this is the best option."

As reported in this new AP piece, "Gov. Bev Perdue on Thursday vetoed legislation that rolls back a landmark state law that allows death-row inmates to argue that their sentence resulted from racial bias." Here is more:

"As long as I am governor, I will fight to make sure the death penalty stays on the books in North Carolina. But it has to be carried out fairly — free of prejudice," Perdue said in a statement.

The Republican-controlled legislature passed the bill by margins that would appear to be enough for an override of Perdue's veto. Legislative leaders said they would try to push the legislation into law over Perdue's effort to block it.

"While Governor Perdue may claim to support the death penalty, her veto proves she's in lock-step with the leftist elements of her party who want to abolish it," Senate leader Phil Berger, R-Rockingham, and House Speaker Thom Tillis, R-Mecklenburg, said. "We will work with both sides of the aisle to override yet another irresponsible gubernatorial veto."

The existing state law allows judges to consider statistical analysis of cases showing race must have been a factor in prosecution decisions, even if no one testifies bias played a role in a specific case. Republicans who took over the General Assembly last year have sought to void or weaken the law passed in 2009, when Democrats controlled the legislature.

The law Perdue vetoed would allow convicts to offer statistics they think prove racial bias from a time span 10 years before a slaying and two years after they are sentenced. There is currently no time limit. The bill also says statistics alone cannot prove race was a significant factor in a death-row inmate's conviction or sentence. Statistics also would be limited to the conduct of prosecutors near where the murder occurred, rather than anywhere in the entire state as the current law allows.

The state's district attorneys sought the changes after saying that the Racial Justice Act clogged the court system and delayed the carrying out of capital punishment. Nearly all the 150-plus inmates on North Carolina's death row filed for reviews under the law, including white defendants convicted of killing white victims.

Opponents say the changes gut the intent of the law, which was removing racial discrimination from the criminal justice system and ensuring fairness in carrying out capital punishment.

In the first case under the law, Cumberland County Superior Court Judge Greg Weeks ruled in April that condemned killer Marcus Robinson's 1991 trial was so tainted by the racially influenced decisions of prosecutors that he should be removed from death row. Prosecutors plan to appeal the sentencing decision.

I am not surprised by the repeat veto, and it will be interesting to see if the NC legislature can keep the votes together for an override. And, in light of Gov Perdue's strong veto statement (which can be accessed in full here), I wonder if she might end up commuting a lot of death sentences if/when the NC legislature succeeds in its override effort.

June 28, 2012

The cites to and echoes of Booker in today's SCOTUS health care ruling

In the comments to this prior post, DEJ makes this observation: "After holding the Medicaid expansion unconstitutional, the Court had to decide the remedy for violating the Spending Clause: Must the entire expansion fall or does it remain in some form? And how, exactly, did the plurality come to its remedy? By looking to the Booker remedy opinion: "In considering that question, '[w]e seek to determine what Congress would have intended in light of the Court’s constitutional holding.' United States v. Booker, 543 U. S. 220, 246 (2005)." Booker is twice cited by the plurality to support its remedy."

In addition, a thoughtful law grad from my alma mater, Rajiv Mohan, sent me this e-mail to not "how similar [the ACA ruling] is to Booker":

In both cases, legislative innovations -- if not limited -- threatened deeply-held constitutional principles: the right to trial by jury on the one hand, and enumerated powers on the other.

In both cases, the proposed limiting principle is oddly formalistic and susceptible to legislative circumvention. The Apprendi principle, after all, could be circumvented by advisory guidelines that give no role to the jury. And even with a ban on mandates under the Commerce Clause, Congress could achieve the same effect through the tax power.

And in both cases, a majority of the Court accepts the limiting principle, only for one Justice to back away from its seemingly natural consequences by pragmatically imputing to Congress a will to do what it no doubt could have done, in the face of considerable doubt that it actually did.

In a similar vein, public defender David Hemmingway sent me an e-mail to report his "whimsical notion" that the Booker remedy played a role in the ACA litigation outcome, which includes these observation:

This morning as SCOTUSblog was reporting that the individual mandate survived at the very same time that CNN & Fox loudly proclaimed that the Court had struck it down, [a lawyer in] our office recalled that overcast January day in 2005 when the Court issued Booker: everyone was reading it and scratching their head. In the ensuing seven years, CJ Roberts along with Justices Sotomayor and finally Justice Kagan have embraced it (as confirmed by last week's decision in Southern Union that the Apprendi right to jury fact finding also applies to criminal fines).

So maybe seven years of life with the Booker remedy -- which still stands in tension with both the Sixth Amendment violation that prompted it and the Congressional intent to reduce judicial discretion under the Sentencing Reform Act -- helped make it possible or easier for Roberts to join two conflicting majorities and uphold the ACA. At this time, on this planet, there are times when the best one can hope for requires that we live in a contradiction.

One of many noteworthy legal developments today sure to be overshadowed by the Supreme Court's health care ruling is today's Second Circuit panel opinion upholding the 10-year prison sentence of (in)famous defense lawyer Lynne Stewart. The lengthy unanimous opinion in US v. Stewart, No. 10-3185 (2d Cir. June 28, 2012) (available here), covers a lot of interesting sentencing ground, though the most extensive discussion concerns Stewart's claim that enhancement of her sentence due to her initial post-sentencing public comments violated the First Amendment. Here are a few paragraphs from the start and end of the panel ruling:

Appellant Lynne Stewart appeals from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge) sentencing her principally to 120 months' imprisonment following our vacatur on grounds of procedural error of her previous sentence of 28 months and remand of the district court's previous judgment insofar as it imposed that sentence. The details of this case were recounted at length in our prior opinion, United States v. Stewart, 590 F.3d 93, 100-08 (2d Cir. 2009) ("Stewart I"). We repeat them here only insofar as we think it necessary to explain our judgment [of affirmance]....

Finally, Stewart argues that her sentence is substantively unreasonable, principally because of the more than fourfold increase from her original sentence of 28 months' incarceration to the currently imposed sentence of 120 months. She asserts that aside from her public statements, "no change in circumstances or information available to the sentencing court . . . supported increasing Ms. Stewart's sentence by this magnitude." Def.'s Br. at 101. She also contends that the district court was not permitted to increase the sentence in response to suggestions that it do so in the dissent from our panel opinion, and in the dissents accompanying the denial of rehearing en banc. Def.'s Br. at 103. And she urges that in light of her personal characteristics, the sentence imposed on her was so "shockingly high" as to render it substantively unreasonable....

It is the "rare case" in which we will find a sentence substantively unreasonable, and we place "great trust" in a sentencing court. Rigas, 583 F.3d at 123. In Stewart I, we expressly recognized and were "impressed by the factors that figured in Stewart's modest sentence -- particularly her admirable history of providing, at no little personal cost to herself, proficient legal services in difficult cases to those who could not otherwise afford them." Stewart I, 590 F.3d at 147-48. But, nonetheless, she engaged in severe criminal conduct in aid of a terrorism conspiracy, and she did so by abusing the trust that the government had placed in her as a member of the bar. When confronted with these transgressions, she lied repeatedly under oath.

From the moment she committed the first act for which she was convicted, through her trial, sentencing, and appeals, Stewart has persisted in exhibiting what seems to be a stark inability to understand the seriousness of her crimes, the breadth and depth of the danger in which they placed the lives and safety of unknown innocents, and the extent to which they constituted an abuse of her trust and privilege as a member of the bar. We cannot agree with her that the sentence imposed on her was "shockingly high" so as to warrant a finding of substantive unreasonableness.

Early SCOTUSblog report on ACA ruling: "It's very complicated"

I am very much enjoying this morning watching SCOTUSblog and Fox News trying to figure out what the heck is going on.

Here is Tom Goldstein's first-cut assessment: "The bottom line: the entire ACA is upheld, with the exception that the federal government's power to terminate states' Medicaid funds is narrowly read.... Chief Justice Roberts' vote saved the ACA."

Amy Howe adds: "The money quote from the section on the mandate: 'Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.' "

Reporting here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality. The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.

"Lying was his habit" is how the opinion begins.

Alito, Scalia, and Thomas dissent.

So the upshot is that this version of the Stolen Valor Act is unconstitutional, but Congress may be able to do a new law.

"Agent who started ‘Fast and Furious’ defends gunrunning operation"

The inter-branch sparring in the long-running brouhaha over the "Fast and Furious" gun operation has always seemed much more a political story than a criminal justice one. Still, the enduring controversy surely has had significant federal criminal justice implications, at least by severly impacting relationship(s) between current members of Congress and the current Justice Department. As the full House of Representative considers a vote to hold Attorney General Eric Holder in contempt based on a failure to provide full information about discussions of the operation, I wondered if reader have views concerning any potential (good or bad) long-term criminal justice implications of this scandal. This Washington Post article, which shares the headline of this post, seems like a good prompt for urging F&F discussion to be more focused on criminal justice issues that political one. Here is how the WaPo piece starts:

The “Fast and Furious” gun-tracking operation has been widely condemned by Republicans, Democrats and even top officials at the Justice Department as a failed sting. The case has led to the ouster of the U.S. attorney in Phoenix, President Obama’s first use of executive privilege and a probable vote of contempt Thursday against the attorney general.

But in the eyes of the man who started and oversaw Fast and ­Furious, the operation remains an example of smart law enforcement — an approach that has simply been misunderstood. “It was the only way to dismantle an entire firearms-trafficking ring and stop the thousands of guns flowing to Mexico,” said William D. Newell, a veteran federal agent who spent five years as the head of the Bureau of Alcohol, Tobacco, Firearms and Explosives in Phoenix.

In his first public interview about the operation, Newell said he believed that he and his agents were working the largest gun-trafficking case of their careers and finally had a window into Mexico’s powerful Sinaloa cartel. To identify cartel members, ATF agents, beginning in 2009, watched as about 2,000 weapons purchased at Phoenix gun stores hit the streets; their goal was to trace them to the cartel.

But on Dec. 14, 2010, Operation Fast and Furious came crashing down. A Border Patrol agent was killed in the Arizona desert, and two AK-47s found at the scene were linked to Newell’s sting. Agents working under him, enraged, went to lawmakers about the operation, sparking an 18-month investigation led by Rep. Darrell Issa (R-Calif.), who called Fast and Furious “felony stupid.”

Ever the optimist, I am hopeful the long-term impact of the F&F controversy will be a greater disinclination by federal (and state?) officials and prosecutors to imagine and engineer criminal justice stings that might end up looking "felony stupid." But I fear that I may just be looking too hard for a silver lining in this otherwise dark criminal justice cloud.

What is the real national sentencing "mood" in our new era of budget-cut reforms?

The question in the title of this post is prompted in part by what seems to be a somewhat muted political reaction to the Supreme Court's Eighth Amendment decision in Miller, and in part by this effective new article at The Crime Report. The piece is headlined "Rethinking ‘Tough on Crime’," and it has a particular focus on this November's ballot initiative in California to reform that state's broad three-strikes law. Here are excerpts:

[S]everal thousand prisoners ... could be eligible to petition for early release if California voters this November pass a proposed initiative to reform the state’s three-strikes law, the toughest in the country. The proposed law would reserve 25-to-life sentences mostly to those who commit serious or violent crimes on their third offense. It would also allow some current inmates, who committed a third strike that was not violent or serious, to petition for early release.

California is not alone. States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes. Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL). At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

The U.S. Sentencing Commission in October 2011 also recommended changes to federal mandatory minimum sentencing laws, saying that some penalties “apply too broadly, are set too high,” and are applied inconsistently across the country.

“Compared to the ‘80s and ‘90s when the push was to adopt more mandatory sentencing policies, the tide is beginning to move in the other direction,” said Marc Mauer, the director of The Sentencing Project. “We’re seeing a better climate for sentencing and corrections reform.”

The changes are part of a broader rethinking of many of the “tough on crime” sentencing policies that dominated the country for decades. Driven largely by the flagging economy, states have embraced a variety of reforms to rein in the cost of high prison populations, including diverting low-level drug offenders into treatment; reforming the parole system; and granting early release to certain inmates....

Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole. Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.

Rather than a wholesale rejection of long prison terms, though, many of the mandatory minimum and repeat offender sentencing changes are refining laws to reserve the harshest punishment for violent or repeat criminals....

Not every state is moving towards sentencing reform. In Florida, which has a three-strikes law and a mandatory sentencing scheme for gun crimes, Gov. Rick Scott earlier this year vetoed a bill that would have diverted some nonviolent drug offenders into treatment. The legislature in Massachusetts is also considering enacting a new three-strikes law.

And, other than reevaluating mandatory sentences for drug crimes, most states still favor long prison terms, said Barry Krisberg, Director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law. “No one wants to fundamentally change sentencing laws, so we’re not,” he said. “We’re just working around them.”

June 27, 2012

Will some (many?) juve murderers taken off death row by Roper now also get the benefit of Miller?

I keep thinking about the roughly 2000+ juvenile murderers now in US prisons whose LWOP sentences have been thrown into constitutional doubt by the Supreme Court's Miller Eighth Amendment ruling. I am sure it will be fascinating (and will be discussed a lot on this blog) just whether, when and how many of these defendants benefit from the Miller decision. (Many of these defendants, as this March 2012 report from The Sentencing Project highlights on page 7, are in their 40s having already served decades in prisons and a few are actually senior citizens.)

As the question in the title of this post reveals, one especially notable subset of juvenile murderers came to mind for me today: the roughly six dozen juvenile murderers who had been sentenced to death and were on death row in 2005 when the Supreme Court in Roper declared juvenile murderers categorically ineligible for the sentence of death. The Death Penalty Information Center has this webpage providing this overview of the juve murderers who were on death row at the time of Roper:

As of December 31, 2004, 71 persons were on death row for juvenile crimes.... Although all were ages 16 or 17 at the time of their crimes, their current ages range from 18 to 43. They were under death sentences in 12 different states and had been on death row from 4 months to 24 years. Texas had by far the largest death row for juvenile offenders, holding 29 (40%) of the national total....

All of the juvenile offenders who were on death row are male... Over three-quarters of these cases involved 17 year old offenders, and two-thirds of them were offenders of color. In contrast, 81% of the victims were adults. Over two-thirds of the victims are white, and half are females.

The DPIC's case summaries of all the juve capital defendants and their crimes does not include any information about when or how these defendants were resentenced after Roper. For a variety of reasons, I doubt that all these juvenile murderers who got off death row due to Roper were given mandatory LWOP sentences. But I also would guess that some were, and thus wonder if some of these defendants might get (another) resentencing after Miller and perhaps now get even a lower sentence.

UPDATE: I have just seen this AP article from Mississippi discussing this group of offenders and a state-based claim that once-capital defendants do not get now the benefit of Miller:

Mississippi corrections officials initially said 56 inmates were in custody who were sentenced when they were 18 or younger, but said Tuesday some inmates had multiple counts and the actual number is 46 serving capital murder sentences.

"It is our position that it will not affect those capital murder cases where the death penalty was sought and the jury returned a sentence of life without parole," Hood said in a statement Tuesday. "This is because the jury at that separate sentencing hearing took into consideration those factors that the United States Supreme Court held must be considered before a life without parole sentence can be imposed.

In cases that are pending on direct appeal, where a life without parole sentence was imposed, Hood said his office will file a motion for resentencing based on the Supreme Court ruling. "Where juvenile defendants who were previously sentenced to life without parole and their sentences have already been affirmed, we expect they will file a motion for post-conviction relief based on this intervening decision," Hood said.

At any resentencing, Hood said the trial judge "may consider those factors identified by the Supreme Court and then may resentence them to life without parole or life, which means that they will be eligible for parole at age 65."

Though it is sometimes said that a smile is worth a thousand words, in a US district court a smile can apparently sometimes be worth an extra six months in federal prison. This remarkable reality is demonstrated by the an Eighth Circuit panel ruling today in US v. White Twin, No. 11-3206 (8th Cir. June 27, 2012) (available here), which concludes with these two paragraphs:

White Twin claims that the district court abused its discretion by considering an improper factor – his smile. This court reviews the substantive reasonableness of a sentence for abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). A district court abuses its discretion when it “gives significant weight to an improper or irrelevant factor” in sentencing. United States v. Williams, 624 F.3d 889, 896-97 (8th Cir. 2010).

The district court did not abuse its discretion by increasing White Twin’s sentence by six months after he smiled. The court was uniquely situated to observe his demeanor, and personally charged with reviewing the § 3553(a) factors. District courts have wide discretion in determining a fair and just sentence. See United States v. Gant, 663 F.3d 1023, 1029-30 (8th Cir. 2011). A district court may consider a defendant’s attitude and demeanor when exercising its sentencing discretion. See United States v. Robinson, 662 F.3d 1028, 1033 (8th Cir. 2011). Congress has provided that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. The district court based its increase in the sentence not solely on the smile, but a combination of it and other factors. The district court did not abuse its discretion in considering White Twin’s smile.

"Madoff's Brother to Plead Guilty to Criminal Charges"

The brother of convicted Ponzi scheme operator Bernard Madoff will plead guilty to criminal charges Friday, marking the first time a family member has admitted guilt aside from Mr. Madoff himself since the fraud came to light 3½ years ago.

Peter Madoff, who worked as the Madoff firm's chief compliance officer and senior managing director, is expected to plead guilty to two charges at a hearing Friday, including falsifying the records of an investment adviser and conspiracy to commit securities fraud and other crimes.

As part of an agreement with prosecutors, Peter Madoff has agreed to a sentence of 10 years in prison, prosecutors said in a letter to U.S. District Judge Laura Taylor Swain, which was filed on Wednesday. He also has agreed to forfeit about $143.1 billion, prosecutors said.

I trust I will not be the only one who wonders about and sees the irony in a mega-fraudster like Peter Madoff, thanks to the exercise of prosecutorial charging/sentencing discretion, is now apparently going be serving just 10 years in federal prison (actually, probably less than 9 years given good-time credits) while many low-level federal crack offenders are still serving their second or third decade of federal prison time because a federal judge lacked any sentencing discretion to impose a lower sentence deacdes ago under then-applicable mandatory minimums and/or then-binding mandatory guidelines.

As previously explained here, in a series of posts I am trying to explain briefly what I see as a suspect judgment or assertion or conclusion at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basic questions here and here and here). In the first post here, I questioned number-crunching in the Roberts/textualism dissent. In this second post now, I question claims about LWOP as a method of punishment in what I am calling the Thomas/originalism dissent.

Justice Thomas' Miller dissent, which was joined only by Justice Scalia, rests on an originalism claim in this sentence: "As I have previously explained, 'the Cruel and Unusual Punishments Clause was originally understood as prohibiting torturous methods of punishment — specifically methods akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted.' Graham (dissenting opinion)[FN 2]." The associated footnote 2 then says (cites omitted): "Neither the Court nor petitioners argue that petitioners’ sentences would have been among the modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted. Nor could they. Petitioners were 14 years old at the time they committed their crimes. When the Bill of Rights was ratified, 14-year-oldswere subject to trial and punishment as adult offenders. Further, mandatory death sentences were common at that time. It is therefore implausible that a 14-year-old’s mandatory prison sentence — of any length, with or without parole — would have been viewed as cruel and unusual."

Though I am not deeply versed in Eighth Amendment originalism, I do know some reasonably contest that the Eighth Amendment was only "originally understood as prohibiting torturous methods of punishment." But even if one fully accepts Justice Thomas' claim that the Eighth Amendment is only to be viewed as a restriction on punishment methods, I do not find it "implausible" to contend that those who enacted the Eighth Amendment in the late 18th century (and/or those who enacted the Fourteenth Amendment in the mid 19th Century) would view an LWOP prison term as "akin to those that had been considered cruel and unusual at the time the Bill of Rights was adopted."

A critical assumption built into the (suspect) logic of Justice Thomas' reasoning in footnote 2 is that, because the death penalty was not considered a cruel and unusual method of punishment for teens at the time the Bill of Rights was adopted, surely then must the seemingly lesser punishment method of prison not have been considered cruel and unusual. But the Eighth Amendment surely was never meant or understood to support the claim that because death is a constitutional method of punishment everything short of death and/or leading up to death is also constitutional. Many infamous forms of torture punishments around during the colonial period (such as thumbscrews, ducking stools, and the rack) were often not expected or intended to cause death, and yet all seem to agree that these methods of punishment would violated the Eighth Amendment even from an originalist perspective. In addition, originalists seem also to agree that severe physical punishments designed to cause a painful "lingering death" in the process of completing an execution (such as the breaking wheel or drawing and quartering) were modes of punishment being barred by the Eighth Amendment's prohibition on cruel and unusual punishments.

Of course, being locked in a prison cage is surely not as physically painful a method as thumbscrews or the rack, especially over a short period of time. But prison as the deprivation of liberty over time is surely a distinct method of punishment, and an LWOP prison term lasting many decades is surely much more physically and mentally taxing than, say, being subjected for a few days to thumbscrews or waterboarding. (Indeed, I would wager many relatively young offender serving an LWOP would agree to enduring thumbscrews or waterboarding for a few days in order to get a real chance for an early release.) In other words, though a day in prison is surely a less torturous method of punishment than a day on the rack, I am not sure that necessarily means that an LWOP prison term lasting many decades is a less torturous method of punishment than a day on the rack.

Moreover, bringing back in the Framers' mindset, in this context I often think of Patrick Henry's famed quote of "Give me liberty or give me death" and President Lincoln's famed description of America as a nation "conceived in liberty." Against that backdrop, I think one might fairly conclude that many Framers would have viewed a LWOP prison term's permanent deprivation of human liberty to be a method of punishment (much?) worse than death. Indeed, what truly makes an LWOP sentence so severe and extreme is that it is arguably just a form of "lingering death" because deprivation of any chance at parole ensures that an offender will forever linger in prison (sometimes with only slightly more liberty than someone left on a rack if always kept in solitary confinement) until he eventually dies. (The fact that prison was concevied and designed to be soley a method of rehabilitative punishment around the time of enactment of the 14th Amendment add to my view that an LWOP prison term might very well have been viewed as both cruel and unusual to many Americans throughout much of American history.)

My point here is decidedly not that I think an originalist approach to the Eighth Amendment is ideal or provides a clear jurisprudence concerning when an LWOP sentence might and might not be constitutionally permissible. Rather, as in all my posts in this series on the Miller dissents, I just want to flag the reality that the originalist claim that only some methods of punishment are unconstitutional does not necessarily and obviously, as Justice Thomas seeks to suggest, produce the conclusion that the LWOP sentences at issue in Miller were constitutional. Indeed, because liberty-deprivation through confinement in prisons (and especially the LWOP sentence) are really a very modern mode/technology of punishment wholly unknown to the Framers, I think trying to figure out what the Framers would have thought about LWOP prison terms is a bit like trying to figure out what the Framers would have thought about the internet: one's personal views about the new technology will necessarily color one's judgment as to what the Framers' would have thought.

This local story from my own Columbus Dispatch, which is headlined "Bill signings include help for freed felons," effectively highlights not only that bipartisanship remains vibrant on some "smart" criminal justice reforms, but also that having Republicans in charge of a state's political branches may be essential to moving these reforms from good ideas to enacted legislation. Here is how the piece starts:

A bill that will reduce barriers to employment and education for felons when they leave prison was among the 13 pieces of legislation that Gov. John Kasich signed yesterday.

Deemed the “collateral sanctions” bill, Senate Bill 337 will make it easier for people getting out of prison to get jobs cutting hair, working construction, selling hearing aids and working as security guards. Judges will be able to award certificates to remove job barriers and protect employers from potential liability. Also, courts can order community service instead of fines or driver’s-license revocation for non-driving offenses, and child-support orders can be modified when inmates are in jail or have a felony record.

It was a truly bipartisan bill introduced by Democratic Sen. Shirley Smith of Cleveland and Republican Sen. Bill Seitz of Cincinnati — and championed by Kasich — that the House passed unanimously.

On issues key modern state criminal justices ranging from sentencing reform to collateral consequences to use of clemency powers, Ohio's Governor John Kasich has been, in my view, one of the most engaged and effective chief executives in the nation. (For this reason, I may now have to start rooting for Mitt Romney to pick Gov Kasich as his running mate, though I doubt he is on any realistic short lists.) And the Ohio General Assembly, perhaps because it is dominated by members of the same party as Governor Kasich and has a number of real thoughtful members on both sides of the aisle, merits great credit for not turning any of these issues into a political football to kick around seeking polling points.

Though sometimes I fear that praise from the ivory tower might hurt rather than help some politicians, I still must give a proud shout-out and hearty praise to Gov Kasich and the Ohio legislature. I hope they keep up the great work and keep trying to make sure my Ohio tax dollars are not wasted on unduly harsh and ineffective criminal laws and policies.

"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"

The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game. Here are excerpts:

Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing. First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1. Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act. Third, the Commission unanimously agreed to make these changes retroactive....

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy. There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform. Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions. On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card." Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades. The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century. And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over. The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).

Arizona scheduled to conduct a more transparent execution

As reported in this AP article, headlined "Arizona inmate to be executed in new open process," folks are today literally going to see the impact of a media lawsuit concerning state execution protocols. Here is how the piece starts:

Witnesses expect to be able to see prison officials inject a lethal drug into a condemned inmate for the first time in Arizona history on Wednesday, when the state is scheduled to execute its fourth prisoner of the year. Arizona opened up the process after a federal judge recently sided with The Associated Press and other news organizations in Idaho to allow witnesses full viewing access to lethal injections.

Until now, witnesses from the news media, the state and victims' family members walked into the death chamber at the state prison in Florence after the inmates had been injected and covered with a sheet up to their chest or neck. Once the witnesses were in place, the drugs then coursed through the inmates' veins. Now witnesses will see the actual injection, something that defense attorneys sought in an effort to ensure inmates don't experience any unnecessary pain.

Samuel Villegas Lopez is set to be Arizona's fourth inmate to die by a single-drug lethal injection. Two more condemned prisoners whose appeals are nearing their end could be executed by the end of the year, which would put the state on pace to match its busiest year for executions and among the busiest death-penalty states in the nation.

Lopez was sentenced to die for the brutal rape and murder of a 59-year-old Phoenix woman in 1986. Of the 126 inmates on Arizona's death row, only five have been there longer than him.

June 26, 2012

Anyone eager to discuss Dorsey or Southern Union or Arizona v US or...

any of the other still on-going SCOTUS developments or other sentencing stories beyond the Supreme Court's Eighth Amendment work in Miller v. Alabama? I ask in part because there is much of recent SCOTUS sentencing law and policy activity worthy of continued discussion beyond the Miller ruling, and yet I have (too) many ideas swirling around my head for future posts/commentaries on various aspects of the Miller case and its likely aftermath.

I have already posted six significant entries in the last 36 hours concerning the Miller ruling, and I have at least three more blog commentaries in the works on the dissenting opinions and on how states with lots of mandatory LWOP juve sentences might most efficiently respond to the holding. (In addition, I could and perhaps should try to provide in additional posts some round up of the more interesting MSM coverage and blogosphere commentary on the Miller decision.) But if readers report in the comments that they are already getting Miller fatigue (and/or would rather see posts on other topics), I will be inclined to move toward a last call on Miller time.

Washington struggling with the high costs of keep defender case loads from being too high

This interesting new AP article from Washington, headlined "Limit on public-defenders' caseloads puts strain on cities," reports on the practical challenges confronting a state that is trying reasonably to limit caseload for public defenders. Here are the details:

Officials in cities across Washington state say that even as they're trying to find ways to cut budgets, new guidelines from the state Supreme Court will force them to cough up more money for people who are accused of crimes but can't afford their own attorneys.

By a 7-2 vote this month, the justices adopted new case limits for public defenders — lawyers appointed to represent poor defendants. The standards say that beginning in September 2013, public defenders should not handle more than 300 to 400 misdemeanor cases or 150 felony cases a year, limits designed to make sure the lawyers have enough time to devote to their clients and ensure those defendants are getting their constitutional right to an attorney.

The caseloads have been especially high in city courts that handle misdemeanors, with public defenders sometimes taking on 1,000 or more cases annually. Now, city officials busy preparing next year's budgets basically have two options: Provide more money to law firms that represent poor defendants or charge fewer people with crimes....

Some city attorneys and public defenders share another concern that instead of paying more for public defense, cities will grant contracts to less experienced, cheaper lawyers or those willing to certify that they're meeting the standards even when they're not.

The state Bar Association had previously set similar caseload limits, but they were little enforced. The Supreme Court's adoption gives them new teeth, and requires lawyers who represent indigent clients to certify quarterly that they're meeting the standards....

The high court acknowledged the financial burden the ruling would place on cities and counties but said the move is essential in guaranteeing that everyone has adequate legal representation. The workloads of public defenders have long been an issue. The cities of Burlington and Mount Vernon are being sued by the American Civil Liberties Union of Washington, which says the two lawyers hired to handle misdemeanor cases took on more than 2,100 cases in 2010 alone, and rarely if ever met with their clients or investigated cases.

U.S. District Judge Robert Lasnik said evidence suggests that the appointment of public defenders in those cities is "little more than a sham." The cities deny that the plaintiffs' rights were violated and said that even if the public defenders were incompetent or overworked, the cities aren't liable....

"If a case is important enough to prosecute, it's important enough to defend, and the Constitution says they have to be defended competently," says Bob Boruchowitz, director of the Defender Initiative at Seattle University Law School. "It's long past time for everybody in the criminal justice system to stop tolerating the unfair treatment of poor people."...

In Yakima, City Attorney Jeff Cutter is thinking about changing the way his office files charges. Instead of having police officers charge people with misdemeanors, the officers would send their case files to the City Attorney's Office, which would then determine which cases should be prosecuted. That would cut the number of cases being filed overall, but could increase the work for his prosecutors.

Data and resources to gear up for the coming Miller meshugas

Perhaps because the Supreme Court's Miller ruling yesterday is already making me a bit meshuge, I was inspired to reach into my small knowledge of Yiddish to come us with the right word, meshugas, to describe that I think we will be seeing in lower courts as they try to give effective to Miller's holding and implications for past, present and future cases. As I have explained in this post for general purposes, and as Mark Osler has added in this post for Michigan, and as Scott Henson has observed in this post at Grits for Texas, and as Tamar Birckhead has done in this big summary post at JJB, there are a lot of question that are sure to confront and challenge lower courts (and advocates) in the wake of Miller. Here I want to spotlight point to existing resources to help observers, lower courts and advocates find their way through.

1. The Campaign for the Fair Sentencing of Youth appears at this link to have the most up-to-date and user-friendly resource here for figuring out what states have how many juvenile offenders currently serving LWOP sentences. And the intro to a helpful national map begins with this introduction: "[T]welve states either forbid JLWOP or presently have no such juvenile offenders that we know of serving that sentence. The states that currently prohibit JLWOP are: Alaska, Colorado, Kansas, Kentucky, Montana, New Mexico, and Oregon. The states where there are no people known to be serving JLWOP are: Maine, New Jersey, New York, Vermont, and West Virginia. There is also no one known to be serving a JLWOP sentence in the District of Columbia. The federal government does sentence youth to LWOP — there are currently at least 36 people serving JLWOP in federal prison."

I am sure there are many more good resources now and soon to be developed to help track and assess the coming Miller meshugas. I urge readers to add links to helpful sites and materials in the comments below and/or to send them my way for updated posting.

Though I still have tons of questions about what the new Eighth Amendment SCOTUS Miller ruling will come to mean (opinion here, basic questions here and here and here), I now have some first thoughts on the three intriguing Miller dissents. Though covering some overlapping grounds (and overlapping votes), I think it is fair to short-hand these dissents using their authors and main themes: (1) the Roberts/textualism dissent, (2) the Thomas/originalism dissent, and (3) the Alito/legislative judgment dissent.

Notably, the relatively short Miller majority opinion (perhaps wisely) does not very deeply engage with all the points made in the dissenting opinions, but there is a lot of interest and force in these dissents. However, though seemingly forceful in various ways, I see a suspect judgment or assertion or conclusion at the heart of each dissent. In a series of three posts, I hope to explain briefly the suspect foundation in each of these dissents. I will start here by questioning number-crunching in the Roberts/textualism dissent in Miller.

Chief Justice Roberts' lead Miller dissent, which was signed by all the dissenters, rests on a forceful textual point set forth in these two sentences at the end of first paragraph: "The pertinent law here is the Eighth Amendment to the Constitution, which prohibits 'cruel and unusual punishments.' Today, the Court invokes that Amendment to ban a punishment that the Court does not itself characterize as unusual, and that could not plausibly be described as such." Though I see much force and wisdom in the Chief's concern for the term "unusual" in any interpretion of the Eighth Amendment, I think a careful and sober assessment of the data makes it quite "plausible" to characterize the sentences at issue in Miller as unusual.

First, if we focus just on Kuntrell Jackson's case before SCOTUS, it seems quite "unusual" for a teenage accomplice to a felony with no clear intent to kill and no significant criminal history to be subject to a mandatory LWOP sentence. Though data here can be slippery, there are probably hundreds (if not thousands) of teens each year who are accomplices to felonies in which someone is killed and I suspect very few of these teenage felony-murder accomplices in any given year get a mandatory LWOP. (Many of the teen accomplices without a criminal history, I would bet, are not even arrested or charged with murder, let alone brought into the adult system and subject to a mandatory LWOP sentence.)

There has been, roughly speaking, about 40 years of modern LWOP sentencing, which in turn has resulted in a total of about 2500 juve killers with LWOP sentences (of which about 2000 were imposed manditorily). I would be surprised if more than 20 of these juve LWOPers are just teenage felony-murder accomplices without a significant criminal history like Kuntrell Jackson. Because one could (very conservatively) guess that there have been 20,000 teenage felony-murder accomplices over the last four decades, Kuntrell Jackson's sentence is fairly considered a 1 in 1000 event. It seems quite appropriate (and surely "plausible") to describe such a rare event as "unusual."

Of course, ever the careful and effectively dissenter, the Chief Justice does not really take on whether Kuntrell Jackson's sentence is "unusual" (and his Graham concurrence leads me to think he might have been inclined to join a very narrow opinion that just struck down Jackson's mandatory sentence, perhaps with emphasis on mens rea points stressed in Justice Breyer's concurrence). Rather, the heart of the Chief's dissent is his complaint is that the majority in Miller has used the Eighth Amendment to "ban a punishment" (i.e., mandatory LWOP for any and all teen killers) that is not "unusual." But, even with this wider framing, I am not sure the numbers concerning the frequency of mandatory LWOP are as compelling as the Chief suggests.

Again, as to the frequency of the sentence, we have gone 40 years to get roughly 2000 mandatory juve LWOP sentences imposed, meaning we average over this period roughly 50 such sentences per year. In footnote 1 of his dissent, the Chief notes than DOJ statistics indicate that 1,170 juves were arrested for serious homicide in 2009. Taking just these numbers on their face, one could assert that a juve killer getting a mandatory LWOP sentence is roughly a 1 in 23 event. I think it is possible (and surely "plausible") to describe a 1 in 23 event as "unusual," though surely reasonable minds could differ on this front. (To use a sports metaphor, I think it would be reasonable to say it is "unusual" when the New York Mets win the World Series, even though they have done so twice in the last 45 years.)

Moreover, and perhaps more important, the Chief has fudged the numbers here a bit when referencing the 1,170 juves arrested for serious homicide in 2009, because juve homicides are way down compared to just a decade ago. Once again, data here can be slippery, but I think it is fair to say there were on average much closer to 2000 juve homicides per year over the last 40 years. Using 2000 as the denominator, the odds of a juve killer getting a mandatory LWOP is now a 1 in 40 event. Something that happens only 2.5% of the time seems to me to be "unusual."

This all said, the Chief Justice is certainly on solid ground that a mandatory LWOP sentence for a juve killer is not as unusual as the juve LWOP nonhomicide sentences at issue in Graham. But, critically, the text of the Eighth Amendment does not demand that a punishment be "very unusual" to be unconstitutional, it only demands that a punishment be "unusual." Further still, I do not think this number crunching holds the secret to unlocking an idealized modern Eighth Amendment jurisprudence. But, as will be my goal in all my posts in this series on the Miller dissents, I just want to flag the reality that a key forceful claim in this lead dissent can be viewed as suspect when fully unpacked.

"15 Law Professors Call on Senate to Investigate Office of U.S. Pardon Attorney"

The title of this post is the heading of this new press release from Families Against Mandatory Minimums, which gets started this way:

Today, a group of 15 leading constitutional and sentencing law academics and law professors issued a letter asking Senate Judiciary Committee leaders to hold a hearing to investigate allegations of misconduct by the Office of the Pardon Attorney (OPA). In particular, the letter asks the committee to examine current pardon attorney Ronald Rodgers’ alleged “withholding of critical information from the President” and of “troubling racial disparities in the pattern of grants and denials of clemency.”

The letter was prompted by recent articles by ProPublica investigative journalist Dafna Linzer in The Washington Post, which revealed serious problems in the way the pardon attorney’s office handles clemency requests. Late last year, a story documented what appears to be a disturbing racial disparity in pardon grants. Then, a May 13 article told the story of Clarence Aaron, who is serving a life sentence and was denied a commutation by President George W. Bush after Rodgers allegedly misrepresented facts about his case to White House counsel.

The full text of the letter (with the names of all the signatories) is available for download below, and here are excerpts:

As criminal and constitutional law professors with an interest in sentencing and corrections, we write to urge you to convene a hearing at your earliest convenience to examine the Office of the Pardon Attorney’s conduct with regard to applicants for sentence commutations. Recent revelations about the workings of that office convince us that further investigation is called for....

The President’s pardon power is unique; it is in many instances the only route to justice available for federal prisoners who genuinely merit consideration for early release. The Pardon Attorney is the gatekeeper for the thousands who apply for clemency each year.

Virtually the only governmental check on the pardon power of the president is the ability of the Congress to investigate its use. While Congress properly plays no role in the actual consideration of clemency petitions, there is a duty of oversight relating to the operation of this office. Pursuant to that important duty, we urge you to convene a hearing at your earliest convenience, and will offer whatever help we can.

Regular readers will not be surprised to learn that I am strongly supportive of the spirit of this letter, but they may be surprised to learn that my name is not at the bottom of it. Though I welcome a congressional investigation of the OPA, I strongly favor that the President (or Congress through whatever constitutional means) wholly abolish the OPA because I do not think it appropriate or sound that an office within the US Department of Justice plays any gatekeeping role in the clemency process.

I certainly believe and hope the current OPA could do a much better job than its modern track record and investigative reports indicate. I also believe and hope that a congressional investigation could prod OPA toward useful reforms. But rather than just urge investigation and reform of the status quo, I favor more significant structural changes such as, e.g., the creation of a clemency czar and/or a clemency office/council working inside the White House rather than inside the Justice Department. I worry that calls to investigate the work and workings of the OPA suggest the appropriateness of (and thus indirectly support) having an office inside DOJ serving as a clemency gatekeeper.

Do Race and Ethnicity Matter in Prosecution? — a review of 34 empirical studies on the relationship of race and ethnicity to prosecutorial decision making published between 1990 and 2011 in peer-reviewed journals — analyzes research that previously has been accessible primarily to scholars. The PRJ review, written for a broad audience, is intended to encourage additional research on this critical subject.

“No other actor in the criminal justice system drives case outcomes as profoundly as the prosecutor,” PRJ director Whitney Tymas writes in her introductory note. “Nevertheless, empirical research analyzing racial impacts of prosecutors’ routine choices on the thousands of defendants and victims with whom they interact daily has been scarce.”

"Crime, Punishment, and the Psychology of Self-Control"

The title of this post is the title of this new paper by Rebecca E. Hollander-Blumoff now available via SSRN. Here is the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

June 25, 2012

SCOTUS grants cert to clarify when an error qualifies as "plain"

As reported here at SCOTUSblog, among the copious cert grants was a single federal criminal procedure case which will resolve a circuit split on when an error is qualifies as "plain" for federal appellate review. Here are the details with link via SCOTUSblog:

Docket: 11-9307Issue(s): Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.

Basic mandatory juve LWOP head-count in light of Miller

This article by Warren Richey for the Christian Science Monitor reviews the basics of the Supreme Court's work today in Miller and provides this quick accounting of the number of sentences obviously thrown into question by the ruling:

Currently about 2,500 individuals are serving life without parole prison sentences for crimes committed when they were younger than 18 years old. Of those, roughly 2,000 of the sentences were mandatory.

These numbers sound about right to me (these are the numbers bandied about by the Chief Justice in his dissent), though I would be grateful to see/hear a more precise accounting from anyone in the know.

Interestingly, the two states with the most juvenile offenders who received mandatory LWOP sentences appear to be Pennsylvania (with nearly 450, I believe) and Michigan (with nearly 350, I believe). Neither of these states have typically been on the cutting edge of Eighth Amendment litigation front-lines in recent years, and it will now be very interesting to watch when and how state courts (and lower federal courts) deal with the coming Miller-inspired litigation.

Other states with lots of mandatory juve LWOP defendants worth watching include California, Florida, Louisiana, Missouri and Illinois, all of which have, I believe, at least 100 defendants serving state LWOP sentences for crimes committed when they were younger than 18 years old. [UPDATE: Kent rightfully indicates in the comments that California's LWOP sentences are discretionary (though I have heard them called presumptive, raising another possible litigation front.] Another two dozen states also have more than a handful defendants serving state LWOP sentences for juve crimes, and it is certainly possible (even likely?) that states with a smaller number of problematic JLWOP cases after Miller will be quicker to hear and resolve new Eighth Amendment claims.

Guest-post from Professor Mark Osler: "Miller on the ground in Michigan"

I am pleased to be able to provide the first what I hope might become a series of guest-posts from various folks on what the Supreme Court's work today in Miller v. Alabama (opinion here, basics here, questions here) might mean in various jurisdictions in various setting. Kudos to Professor Mark Osler for getting me the first entry with a first-take on this big new Eighth Amendment ruling, which he titled "Miller on the ground in Michigan":

There was a bit of a mess after the Supreme Court announced its decision in Miller v. Alabama today. AP reporter Jesse Holland initially sent out a story simply stating that the court had ruled that life without parole sentences were unconstitutional for juvenile offenders. The truth was more complex: The Court more narrowly held that what is unconstitutional is a sentencing scheme where the only sentence available to a convicted juvenile offender is life without parole. Not all states have this kind of mandatory sentencing scheme for murder, but many do.

Still, the Miller decision creates some fascinating outcomes. For example, Michigan has mandatory sentencing in this kind of case, and the second largest number of juvenile offenders serving LWOP sentences (after Pennsylvania). That means that over 300 sentences may now be in jeopardy, and the state will have to amend its procedure to allow for a parole eligible sentence in the case of juvenile offenders. Intriguingly, left untouched is Michigan’s rule of automatic transfer to adult status in murder cases — the second part of that state’s legal mechanism which led to so many juvenile LWOP cases.

Aside from the continuing battle before the Court on the constitutionality of Juvenile LWOP, which now moves to discretionary sentences, tough questions face the states affected by Miller. Perhaps most importantly, a state like Michigan has hundreds of inmates serving sentences obtained by an unconstitutional process. If they succeed in getting those sentences overturned, what happens next? Michigan law does not allow for a sentence other than LWOP. Presumably, they could be dumped into the regular parole system, or the state could create a special process for these prisoners already deemed to be different than other murderers by fact of their age at the time of the crime.

There is an opportunity in this — an opportunity to create a new kind of meaningful review that takes into account the views of experts in adolescent development and brain science, victims’ family members, prison officials, and those who support the convicted juvenile. I’m hoping that at least some jurisdictions take a fresh look at the process as whole and not only get rid of mandatory transfers, but inject more meaning into the kind of second look that these offenders might receive.

I am surely going to need many more hours (perhaps many more days and weeks) to figure out what all the votes and all the dicta in all the Miller v. Alabama opinions (opinion here, basics here) might mean for the future of Supreme Court Eighth Amendment jurisprudence. But I have already started figuring out some of the very hard questions already sure to be facing lots of lower courts in the wake of Miller ASAP. Here are just a few that come (too) quickly to mind:

1. Will all (many? any?) juvenile murderers mandatorily sentenced long ago to LWOP necesarily get the benefit of a resentencing after Miller? Arguably, Miller is only a new procedural rule that may not be retroactively applicable in federal habeas due to Teague. But states can (and should?) decide not to follow Teague and arguments can (and surely will) be made that Miller fits into a Teague exception because in announces the (new?) "substantive" rule that kids are always different for Eighth Amendment purposes.

2. Will any (many?) juvenile murderers discretionarily sentenced long ago to LWOP possibly get the benefit of a resentencing after Miller? Miller only formally prohibits mandatory LWOP for juvenile murderers, but it also make clear that kids are categorically different for sentencing purposes. Arguments can (and surely will) be made that Miller suggests all kids sentenced in the past to LWOP ought to get a new shot at sentencing now that SCOTUS has made clear kids are different.

3. When and how will juvenile murderers manditorially sentenced to LWOP get resentenced? Are there any special rules for how to consider kids are different? Does the nature of the murder, as well as the defendants age, have to matter? If a state lacks parole, can it give 75-year sentences to these kids at resentencing?

I could go on and on and on, but now I have to run to a meeting. Many more posts and questions are sure to follow!

Though I am still trying to figure out all the opinions in today SCOTUS Eighth Amendment ruling in Miller v. Alabama (opinion here, basics here), I think I am correct to assert that the ruling is a (surprising?) big win for any and all older juveniles sentenced to LWOP under a mandatory sentencing scheme, while also appearing to be a (surprising?) potential loss for anyone hoping or expecting the Supreme Court to declare unconstitutional any and all LWOP sentences for any and all juvenile offenders.

Here are the paragraphs from the start and end of the majority opinion in Miller per Justice Kagan which lead me to the conclusion that the Miller ruling is pretty limited and narrow as a win for juvenile defendants:

The two 14-year-old offenders in these cases were convicted of murder and sentenced to life imprisonment without the possibility of parole. In neither case did the sentencing authority have any discretion to impose a different punishment. State law mandated that each juvenile die in prison even if a judge or jury would have thought that his youth and its attendant characteristics, along with the nature of his crime, made a lesser sentence (for example,life with the possibility of parole) more appropriate. Such a scheme prevents those meting out punishment from considering a juvenile’s “lessened culpability” and greater “capacity for change,” Graham v. Florida, 560 U. S. ___, ___ (2010) (slip op., at 17, 23), and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties. We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on “cruel and unusual punishments.”...

Graham, Roper, and our individualized sentencing decisions make clear that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles. By requiring that all children convicted of homicide receivelifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemesbefore us violate this principle of proportionality, and sothe Eighth Amendment’s ban on cruel and unusual punishment. We accordingly reverse the judgments of the Arkansas Supreme Court and Alabama Court of Criminal Appeals and remand the cases for further proceedings notinconsistent with this opinion.

I am very much drawn to this procedural approach to the issues in Miller and Jackson, in part because this was the way I urged the Court to resolve these cases in this amicus brief I filed along with my students. But, until I have a full chance to review the holding and dicta in the Miller opinions, I am not quite yet ready to praise without reservations this new important Eighth Amendment decision.

SCOTUS strikes down some (but not all) of Arizona immigration law

Reporting again here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

The second and only other opinion in Arizona. Justice Kennedy announces. The Ninth Circuit is reversed in part and affirmed in part. Justice Kagan does not participate. The Court rules that Section 3, 5, and 6 are preempted. Most of the key provisions of SB1070 (3 of 4) are invalidated. One provision is held not to be proved preempted; it must be construed. It was improper for the lower courts to enjoin Section 2(B), which requires police officers to check the legal status of anyone arrested for any crime before they can be released.

The full opinion in Arizona v. US is now available at this link, and here is the detailed breakdown of all the opinions:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. SCALIA, J., THOMAS, J., and ALITO, J., filed opinions concurring in part and dissenting in part. KAGAN, J., took no part in the consideration or decision of the case.

SCOTUS rules 5-4 in favor of juve offenders in Jackson and Miller

Reporting here on SCOTUSblog reporting on what its reporter Lyle Denniston is reporting from the Supreme Court this morning:

The Court [per Justice Kagan] holds that the Eighth Amendment forbids a [mandatory] scheme of life in prison without possibility of parole for juveniles. The vote is five to four [with lots of Justices writing dissents]. The decisions of Ark. S. Ct. and Alabama Ct. of Crim. Appeals are reversed.

The full opinion in Miller is now available at this link, and here is the detailed breakdown of all the opinions:

"Utah mom upset over judge's hair-cut punishment"

The title of this post is the headline of this intriguing AP article about a (too?) creative state sentencing in a juvenile court. Here are the details:

A Utah mother says she felt intimidated in court when a judge told her that he would reduce her 13-year-old daughter's sentence if she chopped off the girl's ponytail in court — an offer the mother says she now wishes she hadn't taken.

Valerie Bruno, of Price, said she has filed a formal complaint against 7th District Juvenile Judge Scott Johansen with the Utah Judicial Conduct Commission. The teenager and an 11-year-old friend were referred to juvenile court for cutting off the hair of a 3-year-old girl with scissors in March and for harassing another girl in Colorado by telephone.

When the 13-year-old faced Johansen for a hearing in May, he ordered she serve 30 days in detention and to perform 276 hours of community service, but he also offered to take 150 hours of community service off the sentence if her mother cut her ponytail in his courtroom.

Bruno is now expressing regret for not consulting an attorney before taking her daughter into the courtroom. "I guess I should have went into the courtroom knowing my rights, because I felt very intimidated," she told the Deseret News. "An eye for an eye, that's not how you teach kids right from wrong."

Mindy Moss, mother of the 3-year-old whose hair was cut off, said she approved of the sentence and even spoke up during the hearing when she felt Bruno had not cut off enough of her daughter's hair. Johansen then directed Bruno to cut the ponytail all the way "to the rubber band."

Moss told The Salt Lake Tribune that she originally called police about the haircut because she worried the girls' behavior could become more serious. "I didn't want them to think they got away with it … It was malicious," Moss said.

Under state law, judges are given discretion in coming up with sanctions for youth that will change their behavior in a positive way. Johansen ordered the friend of Bruno's daughter to have her hair cut as short as his. She was allowed to go to a salon to have it done, then return to the courtroom to ensure that the new hairstyle met with the judge's approval.

I know of plenty of lawyers who get upset when a judge orders a hair-cut on their fee requests. I also know that prisoners often complain if and when prison officials require them to get haircuts. But this is the first time I have seen a concern about a hair-cut as part of a sentencing ruling.

Though most of the legal world is following SCOTUSblog this morning awaiting the health care ruling(s), I am enjoying the sounds of their live blogging mostly in expectation of rulings in Jackson and Miller, the juve LWOP Eighth Amendment cases still pending. But sentencing fans ought also know and note, as the SCOTUS drama builds this morning, that there are a number of very interesting pending cert petitions on sentencing issues that might get adjudicated this morning. Via this SCOTUSblog post on "Petitions to Watch," here are highlights of just some of the petitions on which I am rooting for cert:

Rhodes v. Judiscak -- Issue(s): Whether a federal prisoner’s habeas petition challenging the length of his incarceration remains justiciable while he is serving a term of supervised release in light of United States v. Johnson, under which a finding that a prisoner was over-incarcerated is an “equitable consideration[ ] of great weight” in a later proceeding to reduce his term of supervised release.

Herring v. Florida -- Issue(s): Whether the Florida Supreme Court’s refusal to permit consideration of the standard error of measurement in its determination of mental retardation in capital cases violates the Eighth and Fourteenth Amendments, which forbid the execution of a mentally retarded person under Atkins v. Virginia.

Gabayzadeh v. United States -- Issue(s): (1) Whether the “one book” rule in the Sentencing Guidelines, sections 1B1.11(b)(2) and (3), which requires retroactive application of the latest, harsher guidelines when defendants have committed offenses both before and after the Guidelines have been amended, violates the Ex Post Facto Clause; and (2) whether, after this Court rendered the federal sentencing guidelines advisory in its decision in United States v. Booker, the Ex Post Facto Clause continues to forbid applying amendments to the Guidelines retroactively to increase the presumptive punishment of criminal defendants.

Also, truly hard-core SCOTUS sentencing geek should also surely be extra excited that we are likely to see a whole boatload of crack case petitions GVR'd in light of last week's Dorsey ruling.

Federal judge upholds Indiana's ban on sex offender use of Facebook and other social media sites

As reported in this AP article, late last week US District Judge Tanya Walton Pratt rejected a challenge to an Indiana law banning registered sex offenders from accessing Facebook and other social networking sites used by children. Here are the basics of the ruling and its context:

"Social networking, chat rooms, and instant messaging programs have effectively created a 'virtual playground' for sexual predators to lurk," Pratt wrote in the ruling, citing a 2006 report by the National Center for Missing and Exploited Children that found that one in seven youths had received online sexual solicitations and one in three had been exposed to unwanted sexual material online.

The American Civil Liberties Union of Indiana filed the class-action suit on behalf of a man who served three years for child exploitation, along with other sex offenders who are restricted by the ban even though they are no longer on probation.... "We will be appealing," ACLU legal director Ken Falk said in an email Sunday to The Associated Press. Appeals from federal courts in Indiana go to the 7th U.S. Circuit Court of Appeals in Chicago.

Courts have long allowed states to place restrictions on convicted sex offenders who have completed their sentences, controlling where many live and work and requiring them to register with police. But the ACLU claimed that that Indiana's social networking ban was far broader, restricting a wide swath of constitutionally protected activities....

Though the law doesn't list which websites are banned, court filings have indicated the law covers Facebook, MySpace, Twitter, Google Plus, chat rooms and instant messaging services. Earlier filings indicated LinkedIn was also covered by the ban, but Pratt's ruling said it wasn't because children under 18 can't sign up for it.

"It is a very well-reasoned opinion and the Indiana statute has certainly attempted to be specific," said Ruthann Robson, a professor of constitutional law at the City University of New York. But she faulted the judge and the law for treating all sex offenders as if they were likely to commit another offense. "A better statute might provide for some sort of individualized determination rather than a blanket prohibition," she said.

Social networking bans have been struck down in two other states. In February, U.S. District Judge Brian Jackson found that Louisiana's prohibition was too broad and "unreasonably restricts many ordinary activities that have become important to everyday life." Pratt said Indiana's ban wasn't as broad the overturned Louisiana ban.

Louisiana lawmakers passed a new law last month that more narrowly defines which sites are prohibited. News and government sites, email services and online shopping are excluded from the new rules, as are photo-sharing and instant messaging systems. The measure takes effect Aug. 1.

In Nebraska, a federal judge in 2009 blocked part of a law that included a social networking ban. A second legal challenge by an Omaha-area sex offender is set for trial in July.

Judge Pratt's full opinion in Doe v. Prosecutor, Marion County, Indiana, No. 1:12-cv-00062-TWP-MJD (S.D. Ind. June 22, 2012), is available at this link. Here is how it starts:

In an effort to prevent the sexual exploitation of Hoosier children and protect the public at large, the State of Indiana prohibits certain registered sex offenders from using social networking sites, instant messaging programs, and chat room programs that allow access by persons under the age of 18. See Indiana Code § 35-42-4-12(e). The statute, enacted in 2008, makes the knowing or intentional use of these sites a Class A misdemeanor. Id. Plaintiff John Doe (“Mr. Doe”), on his own behalf and on behalf of those similarly situated, contends that this statute runs afoul of the targeted sex offenders’ First Amendment rights. Initially, Mr. Doe filed a motion for a preliminary injunction asking the Court to temporarily enjoin enforcement of the statute by Defendant, Prosecutor of Marion County, Indiana (“State”). (Dkt. #34.) Since then, the parties have agreed that it would be appropriate for the Court to merge the preliminary injunction motion with a bench trial (Dkt. #40); see also Fed. R. Civ. P. 65(a)(2). Accordingly, Mr. Doe now asks the Court to issue a declaratory judgment declaring Indiana Code § 35-42-4-12 unconstitutional on its face and to permanently enjoin the State’s enforcement of the statute. The Court presided over oral arguments on May 31, 2012, and the Court thanks counsel for their excellent and thoughtful advocacy.

As discussed below, the Court finds that this content-neutral statute is narrowly tailored, leaves open ample alternative channels of communication, and is not overly broad. It follows, then, that the statute does not violate Mr. Doe’s First Amendment rights. Accordingly, Mr. Doe’s requests to enjoin enforcement of the statute (Dkts. #34 and #42) are DENIED and final judgment is entered in favor of the State.

June 24, 2012

Weekend thoughts on the SCOTUS week that was and the one to come?

After a long dry spell for sentencing fans, last week brought lots of notable SCOTUS action in the criminal justice arena with the messy Williams ruling on Monday and then the crisp defense wins in Southern Union and Dorsey on Thursday. And this coming week is sure to bring us not only juve LWOP rulings in Jackson and Miller, but also decisions concerning Arizona's immigration law, the Stolen Valor Act and, of course, health care reform, all of which seem likely to have significant modern criminal justice implications.

So, with that set up, I encourage everyone to share (via comments here or e-mails to me) any new and/or deep thoughts about all this SCOTUS action. Here is one: in light of the outcomes in Dorsey and Southern Union, I am expecting the defendants in Jackson and Miller to prevail either 5-4 or 6-3 and I am expecting the ruling to be fairly narrow. (Of course, I am often wrong when developing these kinds of expectations, so do not make book on these predictions.)